If you promise someone that you will leave them something after your death, is it fair for that promise to be overridden by the provisions of your Will?
That was the question that the court needed to decide in the recent case of Davies v Davies and others (which involved a dispute between family members as to who should be entitled to the family farm following the death of the father.
Mr & Mrs Davies had five children. At the time of leaving school, one of the sons, the claimant in the case, was persuaded by his parents not to follow his chosen career with the police but to work the family farm. In return, the son was promised that the farm would be his. This promise was repeated some years later when the parents and the other children moved out of the farmhouse and into a bungalow on the farm; the son was handed the keys to the farmhouse and told “it is all yours now”.
In reliance upon that promise, the son took on responsibility for renovation of the farm and, in partnership with his father, worked long hours for low pay.
The terms of Mr Davies’ Will however, provided for the farm to be held on trust for the son until he reached 60 years (or died before) when the farm was to be sold and the proceeds of sale divided into five shares, one each for the other children and the fifth for the son’s children.
The son, who was 57 years old at the time, brought a claim based on proprietary estoppel, arguing that it would be unconscionable to deny him what had been promised.
The doctrine of proprietary estoppel relies upon the presence of three elements:
- a representation or assurance made to the claimant; and
- reliance upon that assurance by the claimant; and
- detriment suffered by the claimant in consequence of his reasonable reliance upon that assurance.
The absence of any one of those elements would defeat the claim but in this case the court was satisfied that;
- the promises had been made to the son by the father (with the knowledge and agreement of the mother); and
- the son had relied upon that promise; and
- that there had been detriment to the son (passing up a career in the police, working long hours at low pay and carrying out improvements to the farm) in his reliance upon it.
The detriment to the son was sufficient to make it unconscionable to deny him an interest in the farm. Despite the terms of the father’s Will, the court decided that the son was entitled, save for the bungalow, to what he had been promised.
A reminder that a promise made, may actually be a debt unpaid.